Constitutional “Cross-Ruffing”: My New Article

About a year ago, I wrote about the Second Circuit’s decision in the Ghailani case, in which, among other things, the Court of Appeals rejected a former Guantánamo detainee’s Speedy Trial Clause challenge to his subsequent civilian criminal trial. Ghailani had argued that his time spent in military detention should have militated more heavily against the government’s ability to try him in civilian court, lest there be no meaningful constraint on the government’s power to use military detention (that might be effectively unreviewable) as a pretext for terrorism suspects it knows it plans to try in civilian court. The Second Circuit was unmoved, holding that, even if Ghailani’s time at Guantánamo should be counted against the government (it concluded that his time in CIA detention was a different story), Ghailani still couldn’t satisfy the “Barker factors” to make out a meritorious Speedy Trial Clause claim. Although I largely agreed with the result of the Second Circuit’s opinion, I worried that its reasoning could easily be read to tolerate–and might therefore engender–manipulation of the availability of both the military detention and law enforcement paradigms in future cases, which I described as the problem of constitutional “cross-ruffing.”

Thanks to my good friend Deborah Pearlstein and the students of the Cardozo Law Review, I’ve now had the chance to expand upon these concerns in a new paper, which is available via SSRN (and, shockingly, titled “Terrorism Prosecutions and the Problem of Constitutional ‘Cross-Ruffing'”). As the paper argues, there is no question that existing legal authorities, criminal procedure rules, and judicial doctrines, when read together, impose no direct obstacle on such “cross-ruffing.” The harder question, and the one I turn to in Part II of the paper, is whether the possibility of such manipulation by the government is a problem that merits a solution–and if so, what that solution might look like.

Needless to say, I’d welcome any and all feedback on the paper, which is still very much a work-in-progress.